Fortaleza v Lapitan

G.R. No.178288
August 15, 2012
Ponente: J. Del Castillo
Belenzo, Group 5

Petitioner: SPOUSES CHARLIE FORTALEZA AND OFELIA FORTALEZA

Respondents: SPOUSES RAUL LAPITAN AND RONA LAPITAN

Relevant Provisions/Laws:

 Art. 153, Family Code: The family home is deemed constituted on a house and lot from the
time it is occupied as a family residence. From the time of its constitution and so long as any of
its beneficiaries actually resides therein, the family home continues to be such and is exempt
from execution, forced sale or attachment except as hereinafter provided and to the extent of the
value allowed by law.
 Art. 155, Family Code: The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have
rendered service or furnished material for the construction of the building

FACTS:
 Spouses Charlie and Ofelia Fortaleza obtained a loan from spouses Rolando and Amparo
Lapitan in the amount of P1.2 million subject to 34% interest per annum and executed on a
Deed of Real Estate Mortgage over their residential house and lot situated in Barrio Anos,
Municipality of Los Baños, Laguna
 When spouses Fortaleza failed to pay, the creditors applied for extrajudicial foreclosure of the
Real Estate Mortgage and the public auction sale of the subject property was set on May 9,
2001.
 At the public auction sale, Rolando and Amparo’s son Dr. Raul Lapitan and his wife Rona
emerged as the highest bidders and were issued a Certificate of Sale on November 15, 2002.

 The one-year redemption period expired without the spouses Fortaleza redeeming the mortgage.
Thus, spouses Lapitan executed an affidavit of consolidation of ownership on November 20,
2003

 Despite the cancellation of the previous TCT and the issuance of the new one, the spouses
Fortaleza refused spouses Lapitan’s formal demand to vacate and surrender possession of the
subject property

 Spouses Lapitan filed a ex parte petition for the issuance of writ of possession with the RTC of
Calamba City claiming that as the new registered owner, they are entitle of the possession of the
subject property

 Spouses Fortaleza questioned the validity of the real estate mortgage and the foreclosure sale.
  RTC ordered the issuance of a writ of possession

 Spouses Fortaleza moved for reconsideration, claiming that the subject property is their family
home and is exempt from foreclosure sale. However, RTC denied their motion and the branch
clerk of court issued the Writ of Possession and the sheriff served the Notice to Vacate against
spouses Fortaleza

 Spouses Fortaleza elevated the case to the CA but the appeal was dismissed

 CA stressed that any question regarding the regularity and validity of the mortgage or its
foreclosure cannot be raised as a justification for opposing the issuance of the writ of possession
since the proceedings is ex parte and non-litigious. Moreover, until the foreclosure sale is
annulled, the issuance of the writ of possession is ministerial.
ISSUES:
1. Whether or not the subject property is exempt from forced sale because it is a family home?
2.
JUDGMENT: PETITION IS DENIED

HOLDING:

No, spouses Fortaleza’s argument that the subject property is exempt from forced sale because it
is a family home deserves scant consideration
 As a general rule, under Article 153 of the Family Code, from the time of its constitution and
as long as any of its beneficiaries actually resides there, the family home continues to be such
and is exempt from execution, forced sale or attachment except as hereinafter provided and to
the extent of the value allowed by law.
 However, Article 155 provides the exemption to the general rule. And Art. 155(3) explicitly
allows the execution, forced sale or attachment of the family home “for debts secured by
mortgages on the premises before or after such constitution."
 In the present case, spouses Fortaleza voluntarily executed a deed of Real Estate Mortgage over
the subject property which was even notarized by their original counsel of record.
 Even assuming that the property is exempt from forced sale, spouses Fortaleza did not set up
and prove to the Sheriff such exemption from forced sale before it was sold at the public
auction.
 Honrado v. Court of Appeals
◦ While it is true that the family home is constituted on a house and lot from the time it is occupied as a family
residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for
exemption should be set up and proved to the Sheriff before the sale of the property at public auction. Failure
to do so would estop the party from later claiming the exemption. As this Court ruled in Gomez v. Gealone.
 Gomez v Gealone
◦ Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is,
nevertheless, well-settled that the right of exemption is a personal privilege granted to the judgment debtor and
as such, it must be claimed not by the sheriff, but by the debtor himself at the time of the levy or within a
reasonable period thereafter
 Spouses Fortaleza’s reliance on the cases of Tolentino and De Los Reyes in praying for the
exercise of the right of redemption even after the expiration of the one-year period.
◦ In Tolentino, it was held that an action to redeem filed within the period of redemption, with
a simultaneous deposit of the redemption money tendered to the sheriff, is equivalent to an
offer to redeem and has the effect of preserving the right to redemption for future
enforcement even beyond the one-year period.
◦ In De Los Reyes, the Court allowed the mortgagor to redeem the disputed property after
finding that the tender of the redemption price to the sheriff was made within the one-year
period and for a sufficient amount.
◦ Circumstances in present case were different. Spouses Fortaleza deemed to have have
waived or abandoned their right of redemption by not filing an action or making a formal
offer to redeem the subject property accompanied by an actual and simultaneous tender of
payment. As well as for allowing the o1 -year period to lapse from the registration of the
certificate of sale without redeeming the mortgage. For all intents and purposes, spouses
Fortaleza.